Holick v. Burkhart

388 F.Supp.3d 1370

Mark HOLICK, Plaintiff,

v.Julie A. BURKHART, Defendant.

Case No. 16-1188-JWB

United States District Court, D. Kansas.

Signed May 15, 2019

Filed May 16, 2019

I Donald A. McKinney, McKinney Law Firm, Inc., Wichita, KS, Martin A. Cannon, Pro Hac Vice, Cannon Law Office, Crescent, IA, for Plaintiff.

Amanda A. Humphreville, Pro Hac Vice, Amber M. Charles, Pro Hac Vice, Annie X. Wang, Pro Hac Vice, John E. Hall, Pro Hac Vice, Julia F. Post, Pro Hac Vice, Marianne F. Kies, Pro Hac Vice, Covington & Burling, Washington, DC, Erin C. Thompson, Office of Federal Public Defender, Kansas City, KS, Robert Vinson Eye, Robert V. Eye Law Office, LLC, Lawrence, KS, for Defendant.

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant's motion for summary judgment. (Doc. 249.) The motion is fully briefed and ripe for decision. (Docs. 249-1, 259, 260, 261, 262, 269.) For the reasons stated herein, the motion (Doc. 249) is GRANTED IN PART and DENIED IN PART.

I. Background

Defendant operates an abortion facility in Wichita. In 2012 and 2013, Plaintiff participated in several anti-abortion protests, including two near Defendant's residence. On March 17, 2013, Defendant filed a petition for a protection-from-stalking ("PFS") order against Plaintiff in Sedgwick County District Court, pursuant to which a state judge issued an ex parte temporary PFS order the same day. Over two years later, Plaintiff moved for summary judgment in the stalking case, and Defendant voluntarily dismissed the action. Plaintiff subsequently filed this diversity action asserting tort claims under Kansas law for malicious prosecution and abuse of process.

II. Uncontroverted facts

The applicable rules require a summary judgment respondent to begin with "a concise statement of material facts" as to which that party contends a genuine issue exists. D. Kan. R. 56.1(b)(1). Plaintiff's statement is not concise and includes large blocks of deposition testimony without identification of any material fact.¹ Plaintiff has also responded to Defendant's statement by asserting a multitude of facts that are not supported by citations to the record, contrary to D. Kan. R. 56.1(b)(2). (Doc. 262 at 20-25.) These failures have hampered the court's efforts to compile a statement of material facts. Based on the materials cited, the court finds the following facts to be uncontroverted for purposes of summary judgment.

In 2012, Defendant announced plans by her organization Trust Women to open South Wind Women's Center in Wichita, a clinic where abortions would be performed. Dr. George Tiller had operated a similar clinic at that location until 2009, when he was murdered by an anti-abortion activist. Dr. Tiller was fatally shot while serving as an usher at his church in Wichita. Defendant worked with Dr. Tiller from 2002 until 2009.

Plaintiff, who has been doing pro-life ministry since 1978, founded a church named Spirit One Christian Center (the "Church") in 1991. Plaintiff acted as senior pastor for the Church until it closed in 2010. After the church closed, Plaintiff had no church to pastor, and he attended Pastor Rob Rotola's Word of Life Church. In 2010, Plaintiff founded an organization called Spirit One Christian Ministries ("Spirit One"). The parties' statements do not discuss the nature of this organization. Before Dr. Tiller's murder in 2009, Plaintiff and members of the Church conducted many anti-abortion "outreaches" at Dr. Tiller's clinic. After Dr. Tiller's murder, the Church's marquee stated: "George Tiller – he died the same way he lived." Defendant has been aware of Plaintiff since approximately 2001 when he protested during the "Summer of Mercy Renewal." (Doc. 262 at 3.)

In 2012, representatives of a "loosely organized coalition of Christian groups" met and discussed ways to oppose operation of Defendant's clinic. There was no single leader of the group. As many as thirty pastors attended meetings. Representatives of the group met with members of the Wichita Police Department (WPD) to discuss a planned pro-life outreach in the College Hill area where Defendant resided. The group wanted to have a police presence at the event, which was scheduled for November 17, 2012.

John Pride, a representative of a group called Operation Save America, contacted and communicated with WPD Officer David Hinners about the event. Hinners in turn communicated with "both sides," meaning with Defendant and with Pride or other representatives of the protesters, in an effort to reduce tensions. Defendant was informed of the November 17 protest about a week ahead of time by Hinners. Prior to the November 17 protest, Hinners prepared and circulated an information flier in Defendant's neighborhood that said in part:

Spirit One Christian Ministries will be conducting an anti-abortion demonstration in the 100 block of South Belmont on Saturday November 17th from 11:30am to 1:00pm. Spirit One Christian Ministries has expressed that they may be making door to door contact of the homes in the neighborhood. The Wichita Police Department will have extra officers in the area. We will be working with all parties to ensure public safety and the protection of individual constitutional rights is a priority.

(Doc. 249-9.) Hinners testified he could not remember where he got the information that Spirit One was conducting the demonstration and said it could have come from Defendant. (Doc. 261-8 at 4.) He testified that Rob Rotola and Dave Daubenmire were the "key people" of the group that came in and talked to him or that ended up running the event. (Id. at 6.)

On November 16, 2012, Defendant discussed the upcoming protest with her Trust Women board members. Defendant said the protest would be held by "Spirit One Church" outside her house. Members suggested having neighbors write letters to the editor and connecting "the current harassment with the hate and terrorism that led to Dr. Tiller's murder." (Doc. 260-10 at 2-3.) Defendant also directed an assistant to draft "letters to the editor about the outrage of [protesters] being there" which should "call out Spirit One Christian Ministries, Mark Holick's hate group, and tie it back to what happened to Dr. Tiller."

(Doc. 262 at 2.) Defendant distributed a flyer in her neighborhood advising residents of the planned protest the following day and indicated it would be put on by "Spirit One Christian Ministries and their followers." (Doc. 261-1.) Also, on November 16, in a Trust Women press release intended for release the next day, Defendant was quoted as saying: "Spirit One Christian Ministries and their followers have taken it upon themselves to try to use shame and harass[ment] of employees as a means to an end – so that Trust Women may not continue its work to open an ob/gyn facility. Spirit One's actions are tasteless and reprehensible.... This is the same virulent gathering that escalated the rhetoric regarding abortion, which ultimately led to the assassination of Dr. George R. Tiller." (Doc. 259-4.)

November 17, 2012 protest.

On November 17, 2012, anti-abortion protesters gathered on the north side of Douglas Avenue near the intersection of Douglas and Belmont streets in Wichita, which was about one block (ten houses) away from Defendant's residence on South Belmont. Plaintiff was present. Some protesters, including Plaintiff, hand-delivered flyers to people in the area that were headlined: "ADOPT AN ABORTION-HOMICIDE PROMOTER." The flyer contained Defendant's picture and her home address. It also contained a photograph of an unborn child purportedly undergoing a surgery in utero, in which the child's tiny hand protrudes from the womb and appears to grasp or lay across the finger of one of the medical personnel involved in the procedure. Among other things, the flyer asserted that Defendant "is responsible for the mass murder of thousands of innocent children"; that "[a]doption is the loving option, not only for babies, but also for adults who have lost their way"; "Please lovingly consider adopting this woman. She needs to know there is a better way"; urging people to "Adopt [Defendant] and pray for her repentance"; "Do a public outreach at her home [listing the address]"; "Write a letter and ask her to stop murdering innocent babies. Tell her about the forgiveness and love of Jesus Christ, if she is willing to turn from her sins"; "Alert the public to the massacre of innocent children by this woman": "Julie Burkhart is our neighbor, your neighbor. As Christians we are called to love her. Our actions could bring her to Jesus and eternal life. Encourage her to repent of the mass murder of the Lord's preborn children"; and "please reminder her that, ‘God hates the hands that shed innocent blood.’ " The bottom of the flyer indicated it was prepared by "Spirit One Christian Ministries" and listed Plaintiff's phone number. (Doc. 249-10.)²

Just prior to the November 17 protest, John Pride and other protesters, including Plaintiff, met with a WPD officer in a nearby parking lot and received instructions on proper behavior, including not creating a disturbance, not impeding anyone from walking down the sidewalk, not trespassing, and staying out of people's yards. Pride testified no one violated those instructions. Plaintiff cites evidence that during the protest, David Gittrich of Kansans For Life stood on the public sidewalk near Defendant's house, and that Gittrich, Pride, and Rotola were there for the entire event. Gittrich stated in an affidavit that Rotola "did a little sidewalk preaching through a bullhorn on low volume for a few minutes." Pride may also have used the bullhorn.

Defendant and her family were not at her residence during the November 17 protest, except for a few minutes when she drove by and talked to some officers. (Doc. 259-7 at 10.) Based on what she was told later, she understood protesters formed into three groups, with one group at Douglas and Belmont (north of Defenda...